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Graham v Finnie's Heirs. [1628] Mor 5481 (14 March 1628)
URL: http://www.bailii.org/scot/cases/ScotCS/1628/Mor1305481-051.html Cite as:
[1628] Mor 5481
Subject_1 HERITABLE and MOVEABLE. Subject_2 SECT. IX.
Obligations to lay out money on heritable security.
Graham v. Finnie's Heirs
Date: 14 March 1628 Case No. No 51.
Found, the reverse of Hamilton against Lamb, No 50. supra. that a sum destined to be laid out on land for the behoof a wife, after the death of the husband, was due by the executor, seeundum vires inventarii, and that the heir would be liable only for the deficiency.
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In an action by Graham, relict of Finnie, against the heir and executors of her husband, and also against her husband's debtors, particularly called in the summons, to hear and see the debtors decerned to pay to her the profits of certain moneys lent to them, and addebted by their bonds to her husband, seeing by her contract of marriage her husband was obliged to provide her to her liferent of all lands, and all sums of money which he should lend out on bond, at any time after their marriage; and therefore she craved the debtors to pay to her the yearly annualrent so long as they retained the moneys; and that the heir and executors of the defunct should employ the same again de novo to her use for her lifetime, conform to the contract. This action was sustained against the debtors, albeit they were not bound to her in their bonds, but to the husband, seeing the heir and executors were called as said is, in this pursuit; and because some of the bonds were conceived to be paid to certain of the defunct's bairns, who had thereby only right thereto; so that the debtors could not in law be compelled to pay any annualrent to the relict, for these sums which they were by bonds subject to pay to the bairns, and not to the defunct's self, there-fore the action for the sums of these bonds was sustained against the heir and executors, for causing of them provide the relict to the liferent thereof; and found, that this action, for employment of a sum upon annualrent to the relict during her lifetime, was competent also against the executors as against the heir, and that it was a fact prestable by executors; but declared, that the executors should have beneficium inventarii, and the heir would be liable for the rest.
Act. Oliphant & Primrose.Alt. Nicolson & Mowat.Clerk, Gilson.
Fol. Dic. v. 1. p. 369. Durie, p. 361.
*** In conformity with the above was decided the case of Porteous against Veitch, No 33. p. 5463.
